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Homeowners’ Association Documents Should Discuss Amendment

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Q: My homeowners’ association is considering amendments to its governing documents. A question has come up concerning what membership vote is required to amend the documents. Can you please advise? (G.R., via e-mail)

A: There is no one size fits all answer concerning what vote is required to amend a homeowners’ association’s governing documents. The first place to look would be in the governing documents themselves. If the association’s governing documents, which typically consist of the declaration of covenants, articles of incorporation, and bylaws, contain amendatory provisions that state the process for amending the documents and what level of approval is required, those provisions would control.

However, there is no standard for what level of approval is required to amend the governing documents. I have seen documents that range anywhere from requiring 100% approval of all members to documents that allow the board of directors, without the requirement for a membership vote, to adopt amendments and everything in between. If the governing documents are silent concerning amendment, Section 720.306(1)(b) of the Florida Homeowners’ Association Act (“Act”) states that unless otherwise provided in the governing documents or required by law, any governing document of an association may be amended by an affirmative vote of two-thirds of the voting interests of the association. This language was added to the Act in 1996. Therefore, if your documents predate the amendment to the statute, there may be an argument that the statute does not apply, and it would be necessary to get the approval of all members to amend the governing documents.

However, this discussion is assuming that the association is considering typical amendments to the governing documents, as there are certain amendments that require a greater level of approval. Pursuant to Section 720.306(1)(c) of the Act, amendments that alter the proportionate voting interest of a parcel or increases the proportion or percentage by which a parcel shares in common expenses of the association requires the approval of all affected parcel owners and all records owners of liens on the parcels. Such amendments would therefore typically require approval of all owners in the association.

Q: I live in a condominium association that is a 55+ community. We are having the census taken to confirm how many occupants are at least 55 or older. How many units must be occupied by 55 or older persons for the association to qualify as a 55+ housing provider? (L.P., via e-mail)

A: To qualify as a 55+ community, at least 80% of the occupied units must be occupied by at least one person 55 years of age or older. Sections 760.29(4)(b)3a.-3c. of the Florida Statutes provide the criteria that must be met to qualify as a 55+ community. In addition to the 80% requirement, the community must publish and adhere to policies and procedures demonstrating an intent to provide housing for persons 55 years of age or older; and the association must engage in appropriate age verification procedures that includes a community census from time to time.

Importantly, and as I have previously addressed in this column, House Bill 255, which became effective on July 1, 2020, amended Section 760.29(4) by deleting the registration requirements for claiming the “Housing for Older Persons” exemption and eliminating the related forms, fees, and fines. Prior to this amendment, the law required associations to submit a registration letter to Florida Commission on Human Relations (“FCHR”) once every two years. Now, effective July 1, 2020, communities are no longer required to register with FCHR. Nonetheless, all legal eligibility requirements, as noted above, must still be met to qualify as a 55+ community.

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